EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement") dated as
of October 30, 2002 among GMAC Mortgage Corporation, a Pennsylvania corporation,
having an office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, as a seller
("GMACM"), Xxxxxx Funding LLC, a Delaware limited liability company, having an
office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, c/o GMAC Mortgage
Corporation, as a seller ("Witmer" and, together with GMACM, each a "Seller" and
collectively, the "Sellers") and Residential Asset Mortgage Products, Inc., a
Delaware corporation, having an office at 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 (the "Purchaser").
WHEREAS, GMACM, in the ordinary course of its business acquires and
originates mortgage loans and acquired or originated all of the mortgage loans
listed on the Mortgage Loan Schedule attached as Schedule I hereto (the
"Mortgage Loans");
WHEREAS, GMACM sold a portion of the Mortgage Loans (the "Xxxxxx
Mortgage Loans"), to Xxxxxx, pursuant to an Amended and Restated Mortgage Loan
Purchase and Servicing Agreement (the "Xxxxxx Purchase Agreement"), dated as of
January 15, 2002, among Xxxxxx, as purchaser, GMACM, as a seller and as
servicer, GMAC Bank, as a seller, and GMAC Residential Holding Corp., as
performance guarantor;
WHEREAS, GMACM owns the Cut-off Date Principal Balances for the portion
of Mortgage Loans identified on the Mortgage Loan Schedule attached as Schedule
I-A hereto (the "GMACM Mortgage Loans");
WHEREAS, Xxxxxx owns the Cut-off Date Principal Balances of the Xxxxxx
Mortgage Loans identified on the Mortgage Loan Schedule attached as Schedule I-B
hereto;
WHEREAS, the parties hereto desire that: (i) GMACM sell the Cut-off
Date Principal Balances of the GMACM Mortgage Loans to the Purchaser on the
Closing Date pursuant to the terms of this Agreement, and (ii) Xxxxxx sell the
Cut-off Date Principal Balances of the Xxxxxx Mortgage Loans to the Purchaser on
the Closing Date pursuant to the terms of this Agreement;
WHEREAS, the parties hereto desire that GMACM continue servicing the
Xxxxxx Mortgage Loans and the GMACM Mortgage Loans; and
WHEREAS, GMACM has entered into an Amended and Restated Limited
Liability Company Agreement (the "LLC Agreement") dated as of October 31, 2001
with Xxxxxx Member Corp. and Bank One, National Association pursuant to which
GMACM has been appointed the administrator of Xxxxxx (the "Administrator"),
pursuant to which GMACM is authorized to execute documents on behalf of Xxxxxx
and to cause Xxxxxx to deliver or perform the obligations of Xxxxxx set forth in
such documents;
-1-
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
The following terms are defined as follows:
Aggregate Principal Balance
(as of the Cut-off Date):
$600,496,497.21 (after deduction of scheduled principal
payments due on or before the Cut-off Date, whether or not
collected, but without deduction of prepayments that may
have been made but not reported to the Sellers as of the
close of business on such date). With respect to the GMACM
Mortgage Loans, $31,246,507.02. With respect to the Xxxxxx
Mortgage Loans, $569,249,990.19.
Closing Date:
October 30, 2002, or such other date as may be agreed upon
by the parties hereto.
Cut-off Date: October 1, 2002.
Mortgage Loan:
A fixed rate, fully-amortizing, first lien, residential
conventional mortgage loan having a term of not more than 30
years and secured by Mortgaged Property.
Mortgaged Property:
A single parcel of real property on which is located a
detached single-family residence, a two-to-four family
dwelling, a townhouse, an individual condominium unit, or an
individual unit in a planned unit development, or a
proprietary lease in a unit in a cooperatively-owned
apartment building and stock in the related cooperative
corporation.
Pooling and Servicing Agreement:
The pooling and servicing agreement, dated as of October 30,
2002, among Residential Asset Mortgage Products, Inc., as
company, GMAC Mortgage Corporation, as servicer and Bank
One, National Association, as trustee (the "Trustee"),
related to the Series 2002-J7 Certificates.
Repurchase Event:
With respect to any Mortgage Loan as to which the related
Seller delivers an affidavit certifying that the original
Mortgage Note has been lost or destroyed, a subsequent
default on such Mortgage Loan if the enforcement thereof or
of the related Mortgage is materially and adversely affected
by the absence of such original Mortgage Note.
-2-
All capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement. The parties
intend hereby to set forth the terms and conditions upon which the proposed
transactions will be effected and, in consideration of the premises and the
mutual agreements set forth herein, agree as follows:
SECTION 1. Agreement to Sell and Purchase Mortgage Loans. GMACM agrees to sell
to the Purchaser and the Purchaser agrees to purchase from GMACM the GMACM
Mortgage Loans having an aggregate principal balance equal to the Aggregate
Principal Balance of the GMACM Mortgage Loans. Xxxxxx agrees to sell to the
Purchaser and the Purchaser agrees to purchase from Xxxxxx the Xxxxxx Mortgage
Loans having an aggregate principal balance equal to the Aggregate Principal
Balance of the Xxxxxx Mortgage Loans.
SECTION 2. Mortgage Loan Schedule. GMACM has provided to the Purchaser a
schedule setting forth all of the GMACM Mortgage Loans to be purchased on the
Closing Date under this Agreement, which shall be attached hereto as Schedule
I-A ("GMACM Mortgage Loan Schedule"). GMACM on behalf of Xxxxxx has provided to
the Purchaser a schedule setting forth all of the Xxxxxx Mortgage Loans to be
purchased on the Closing Date under this Agreement, which shall be attached
hereto as Schedule I-B ("Xxxxxx Mortgage Loan Schedule" and, together with the
GMACM Mortgage Loan Schedule, the "Mortgage Loan Schedule").
SECTION 3. Purchase Price of Mortgage Loans. The purchase price (the "Purchase
Price") to be paid to GMACM by the Purchaser for the GMACM Mortgage Loans shall
be the sum of (i) $31,520,463.29, (ii) the Class PO, the Class IO Certificates
and (iii) a 0.02% Percentage Interest in each of the Class R-I Certificates and
Class R-II Certificates issued pursuant to the Pooling and Servicing Agreement.
The Purchase Price to be paid to Xxxxxx by the Purchaser for the Xxxxxx Mortgage
Loans shall be an amount equal to $574,240,935.35. The cash portion of the
Purchase Price due to GMACM shall be paid by wire transfer of immediately
available funds on the Closing Date to the account specified by GMACM. The
Purchase Price due to Xxxxxx shall be paid by wire transfer of immediately
available funds on the Closing Date to the account specified by Xxxxxx.
The Purchaser and Sellers intend that the conveyance by the Sellers to
the Purchaser of each of the Seller's right, title and interest in and to their
respective Mortgage Loans pursuant to this Agreement shall be, and be construed
as, a sale of their respective Mortgage Loans by the related Seller to the
Purchaser. It is, further, not intended that such conveyance be deemed to be a
grant of a security interest in the Mortgage Loans by each Seller to the
Purchaser to secure a debt or other obligation of such Seller. However, in the
event that the Mortgage Loans are held to be property of the related Seller, or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans, then it is intended that, (a) this Agreement shall be and
hereby is a security agreement within the meaning of Articles 9 of the
Pennsylvania Uniform Commercial Code, the Delaware Uniform Commercial Code and
the Uniform Commercial Code of any other applicable jurisdiction; (b) the
conveyance provided for in this Section shall be deemed to be, and hereby is, a
-3-
grant by each Seller to the Purchaser of a security interest in such Seller's
right, title and interest, whether now owned or hereafter acquired, in and to
the following: (A) the Mortgage Loans sold by such Seller, including (i) with
respect to each Cooperative Loan, the related Mortgage Note, Security Agreement,
Assignment of Proprietary Lease, Cooperative Stock Certificate, Cooperative
Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan,
the related Mortgage Note and Mortgage and (iii) any insurance policies and all
other documents in the related Mortgage File, (B) all amounts payable pursuant
to the Mortgage Loans in accordance with the terms thereof, (C) all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, (D) all accounts, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
goods, letters of credit, letter-of-credit rights, oil, gas, and other minerals,
and investment property consisting of, arising from or relating to any of the
foregoing and (E) all proceeds of the foregoing; (c) the possession by the
Trustee, the Custodian or any other agent of the Trustee of any of the foregoing
shall be deemed to be possession by the secured party, or possession by a
purchaser or a person holding for the benefit of such secured party, for
purposes of perfecting the security interest pursuant to the Pennsylvania
Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Sections 9-313 and 9-314 of each thereof); and (d) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, securities intermediaries,
bailees or agents of, or persons holding for, the Trustee (as applicable) for
the purpose of perfecting such security interest under applicable law. Each
Seller shall, to the extent consistent with this Agreement, take such reasonable
actions as may be necessary to ensure that, if this Agreement were determined to
create a security interest in the Mortgage Loans and the other property
described above, such security interest would be determined to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement. Without limiting the generality
of the foregoing, each Seller shall prepare and deliver to the Purchaser not
less than 15 days prior to any filing date, and the Purchaser shall file, or
shall cause to be filed, at the expense of each Seller, all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Purchaser's
security interest in the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned by
(1) any change of name of such Seller or the Purchaser, (2) any change of type
or jurisdiction of organization of such Seller, or (3) any transfer of any
interest of such Seller in any Mortgage Loan.
Notwithstanding the foregoing, (i) GMACM in its capacity as Servicer
shall retain all servicing rights (including, without limitation, primary
servicing and master servicing) relating to or arising out of the Mortgage
Loans, and all rights to receive servicing fees, servicing income and other
payments made as compensation for such servicing granted to it under the Pooling
and Servicing Agreement pursuant to the terms and conditions set forth therein
(collectively, the "Servicing Rights") and (ii) the Servicing Rights are not
included in the collateral in which the Sellers grant a security interest
pursuant to the immediately preceding paragraph.
SECTION 4. Record Title and Possession of Mortgage Files. Each Seller hereby
sells, transfers, assigns, sets over and conveys to the Purchaser, without
recourse, but subject to the terms of this Agreement and each Seller hereby
acknowledges that the Purchaser, subject to the terms of this Agreement, shall
-4-
have all the right, title and interest of such Seller in and to the related
Mortgage Loans. From the Closing Date, but as of the Cut-off Date, the ownership
of each Mortgage Loan, including the Mortgage Note, the Mortgage, the contents
of the related Mortgage File and all rights, benefits, proceeds and obligations
arising therefrom or in connection therewith, has been vested in the Purchaser.
All rights arising out of the Mortgage Loans including, but not limited to, all
funds received on or in connection with the Mortgage Loans and all records or
documents with respect to the Mortgage Loans prepared by or which come into the
possession of the related Seller shall be received and held by such Seller in
trust for the exclusive benefit of the Purchaser as the owner of the Mortgage
Loans. On and after the Closing Date, any portion of the related Mortgage Files
or servicing files related to the Mortgage Loans (the "Servicing Files") in
either Seller's possession shall be held by GMACM in a custodial capacity only
for the benefit of the Purchaser and shall be promptly delivered to GMACM in the
case of the Mortgage Files or Servicing Files in possession of Xxxxxx. GMACM
shall release its custody of any contents of the related Mortgage Files or
Servicing Files only in accordance with written instructions of the Purchaser or
the Purchaser's designee.
SECTION 5. Books and Records. The sale of each Mortgage Loan has been reflected
on each Seller's balance sheet and other financial statements as a sale of
assets by such Seller. Each Seller shall be responsible for maintaining, and
shall maintain, a complete set of books and records for the Mortgage Loans which
shall be appropriately identified in such Seller's computer system to clearly
reflect the ownership of the Mortgage Loans by the Purchaser.
SECTION 6. Delivery of Mortgage Notes.
(a) On or prior to the Closing Date, in connection with the conveyance by
GMACM of the GMACM Mortgage Loans sold by it and the conveyance by Xxxxxx of the
Xxxxxx Mortgage Loans sold by it, GMACM shall deliver to the Purchaser or the
Custodian, as directed by the Purchaser, the original Mortgage Note, with
respect to each Mortgage Loan so assigned, endorsed without recourse in blank,
or in the name of the Trustee as trustee, and signed by an authorized officer
(which endorsement shall contain either an original signature or a facsimile
signature of an authorized officer of GMACM, and if in the form of an allonge,
the allonge shall be stapled to the Mortgage Note), with all intervening
endorsements showing a complete chain of title from the originator to GMACM. If
the Mortgage Loan was acquired by the endorser in a merger, the endorsement must
be by "____________, successor by merger to [name of predecessor]". If the
Mortgage Loan was acquired or originated by the endorser while doing business
under another name, the endorsement must be by "____________ formerly known as
[previous name]." The delivery of each Mortgage Note to the Purchaser or the
Custodian is at the expense of GMACM.
In lieu of delivering the Mortgage Note relating to any
Mortgage Loan, the Sellers may deliver or cause to be delivered a lost note
affidavit from the related Seller or GMACM stating that the original Mortgage
Note was lost, misplaced or destroyed, and, if available, a copy of each
original Mortgage Note; provided, however, that in the case of Mortgage Loans
which have been prepaid in full after the Cut-off Date and prior to the Closing
Date, GMACM, in lieu of delivering the above documents, may deliver to the
Purchaser a certification to such effect and shall deposit all amounts paid in
respect of such Mortgage Loan in the Payment Account on the Closing Date.
-5-
(b) If any Mortgage Note is not delivered to the Purchaser (or the Custodian as
directed by the Purchaser) or the Purchaser discovers any defect with respect to
a Mortgage Note which materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Purchaser shall give prompt
written specification of such defect or omission to GMACM, and GMACM shall cure
such defect or omission in all material respects or repurchase such Mortgage
Loan or substitute a Qualified Substitute Mortgage Loan in the manner set forth
in Section 7.03. It is understood and agreed that the obligation of GMACM to
cure a material defect in, or substitute for, or purchase any Mortgage Loan as
to which a material defect in, or omission of, a Mortgage Note exists, shall
constitute the sole remedy respecting such material defect or omission available
to the Purchaser, Certificateholders or the Trustee on behalf of
Certificateholders.
(c) All other documents contained in the Mortgage File and any original
documents relating to the Mortgage Loans not contained in the Mortgage File or
delivered to the Purchaser, are and shall be retained by the Servicer in trust
as agent for the Purchaser.
In the event that in connection with any Mortgage Loan: (a)
the original recorded Mortgage (or evidence of submission to the recording
office), (b) all interim recorded assignments, (c) the original recorded
modification agreement, if required, or (d) evidence of title insurance
(together with all riders thereto, if any) satisfying the requirements of clause
(I)(ii), (iv), (vi) or (vii) of the definition of Mortgage File, respectively,
is not in the possession of the Servicer concurrently with the execution and
delivery hereof because such document or documents have not been returned from
the applicable public recording office, or, in the case of each such interim
assignment or modification agreement, because the related Mortgage has not been
returned by the appropriate recording office, in the case of clause (I)(ii),
(iv) or (vi) of the definition of Mortgage File, or because the evidence of
title insurance has not been delivered to the related Seller by the title
insurer in the case of clause (I)(vii) of the definition of Mortgage File, the
Servicer shall use its best efforts to obtain, (A) in the case of clause
(I)(ii), (iv) or (vi) of the definition of Mortgage File, such original
Mortgage, such interim assignment, or such modification agreement, with evidence
of recording indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the relevant recording
office, or (B) in the case of clause (I)(vii) of the definition of Mortgage
File, evidence of title insurance.
(d) If any of the documents held by the Servicer pursuant to clause (c)
above are missing or defective in any other respect and such missing document or
defect materially and adversely affects the interests of the Certificateholders
in the related Mortgage Loan, GMACM shall cure or repurchase such Mortgage Loan
or substitute a Qualified Substitute Mortgage Loan in the manner set forth in
Section 7.03. It is understood and agreed that the obligation of GMACM to cure a
material defect in, or substitute for, or purchase any Mortgage Loan as to which
a material defect in or omission of a constituent document exists, shall
constitute the sole remedy respecting such material defect or omission available
to the Purchaser, Certificateholders or the Trustee on behalf of
Certificateholders.
(e) If any assignment is lost or returned unrecorded to the Servicer
because of any defect therein, GMACM shall prepare a substitute assignment or
cure such defect, as the case may be, and the Servicer shall cause such
-6-
assignment to be recorded in accordance with this Section.
SECTION 7. Representations and Warranties.
------------------------------
SECTION 7.01 Representations and Warranties of Sellers. (i) GMACM represents,
warrants and covenants to the Purchaser that as of the Closing Date or as of
such date specifically provided herein:
(a) GMACM is a corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and is or will be in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan;
(b) GMACM has the power and authority to make, execute, deliver and perform its
obligations under this Agreement and all of the transactions contemplated under
this Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement; this Agreement
constitutes a legal, valid and binding obligation of GMACM, enforceable against
GMACM in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in equity) or
by public policy with respect to indemnification under applicable securities
laws;
(c) The execution and delivery of this Agreement by GMACM and its performance
and compliance with the terms of this Agreement will not violate GMACM's
Certificate of Incorporation or Bylaws or constitute a material default (or an
event which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the material breach of, any material contract,
agreement or other instrument to which GMACM is a party or which may be
applicable to GMACM or any of its assets;
(d) No litigation before any court, tribunal or governmental body is currently
pending, nor to the knowledge of GMACM is threatened against GMACM, nor is there
any such litigation currently pending, nor to the knowledge of GMACM threatened
against GMACM with respect to this Agreement that in the opinion of GMACM has a
reasonable likelihood of resulting in a material adverse effect on the
transactions contemplated by this Agreement;
(e) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by GMACM
of or compliance by GMACM with this Agreement, the sale of the Mortgage Loans or
the consummation of the transactions contemplated by this Agreement except for
consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement is in
the ordinary course of business of GMACM, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages relating to the GMACM
Mortgage Loans by GMACM pursuant to this Agreement are not subject to bulk
-7-
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(g) GMACM did not select such Mortgage Loans in a manner that it reasonably
believed was adverse to the interests of the Purchaser based on the related
Seller's portfolio of conventional non-conforming Mortgage Loans;
(h) GMACM will treat the sale of the Mortgage Loans to the Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate, for
federal income tax purposes;
(i) GMACM is an approved seller/servicer of residential mortgage loans for
Xxxxxx Mae and Xxxxxxx Mac. GMACM is in good standing to sell mortgage loans to
and service mortgage loans for Xxxxxx Mae and Xxxxxxx Mac and no event has
occurred which would make GMACM unable to comply with eligibility requirements
or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(j) No written statement, report or other document furnished or to be furnished
pursuant to the Agreement contains or will contain any statement that is or will
be inaccurate or misleading in any material respect; and
(k) GMACM, as Administrator under the LLC Agreement, is authorized to execute
this Agreement on behalf of Xxxxxx.
(ii) Xxxxxx represents, warrants and covenants to the Purchaser that as of the
Closing Date or as of such date specifically provided herein:
(a) Xxxxxx is a limited liability company duly formed, validly existing and in
good standing under the laws of the State of Delaware;
(b) Xxxxxx has the power and authority to make, execute, deliver and perform its
obligations under this Agreement and all of the transactions contemplated under
this Agreement, and has taken all necessary limited liability company action to
authorize the execution, delivery and performance of this Agreement; this
Agreement constitutes a legal, valid and binding obligation of Xxxxxx,
enforceable against Xxxxxx in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity) or by public policy with respect
to indemnification under applicable securities laws;
(c) The execution and delivery of this Agreement by Xxxxxx and its performance
and compliance with the terms of this Agreement will not violate Xxxxxx'x
Certificate of Formation or the LLC Agreement or constitute a material default
(or an event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in the material breach of, any material
contract, agreement or other instrument to which Xxxxxx is a party or which may
be applicable to Xxxxxx or any of its assets;
-8-
(d) No litigation before any court, tribunal or governmental body is currently
pending, nor to the knowledge of Xxxxxx is threatened against Xxxxxx, nor is
there any such litigation currently pending, nor to the knowledge of Xxxxxx
threatened against Xxxxxx with respect to this Agreement that in the opinion of
Xxxxxx has a reasonable likelihood of resulting in a material adverse effect on
the transactions contemplated by this Agreement;
(e) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by Xxxxxx
of or compliance by Xxxxxx with this Agreement, the sale of the Mortgage Loans
or the consummation of the transactions contemplated by this Agreement except
for consents, approvals, authorizations and orders which have been obtained;
(f) The consummation of the transactions contemplated by this Agreement is in
the ordinary course of business of Xxxxxx, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages relating to the Xxxxxx
Mortgage Loans by Xxxxxx pursuant to this Agreement are not subject to bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction; and
(g) Xxxxxx will treat the sale of the Mortgage Loans to the Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate, for
federal income tax purposes.
SECTION 7.02 Representations and Warranties as to Individual Mortgage Loans. (i)
GMACM hereby represents and warrants to the Purchaser, as to each Mortgage Loan
(except as otherwise specified below), as of the Closing Date, as follows:
(a) The information set forth in the Mortgage Loan Schedule is true, complete
and correct in all material respects as of the Cut-off Date;
(b) The original mortgage, deed of trust or other evidence of indebtedness (the
"Mortgage") creates a first lien on an estate in fee simple or a leasehold
interest in real property securing the related Mortgage Note, free and clear of
all adverse claims, liens and encumbrances having priority over the first lien
of the Mortgage subject only to (1) the lien of non-delinquent current real
property taxes and assessments not yet due and payable, (2) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording which are acceptable to mortgage
lending institutions generally, and (3) other matters to which like properties
are commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property;
(c) The Mortgage Loan has not been delinquent thirty (30) days or more at any
time during the twelve (12) month period prior to the Cut-off Date for such
Mortgage Loan. As of the Closing Date, the Mortgage Loan is not delinquent in
payment more than 30 days and has not been dishonored; there are no defaults
under the terms of the Mortgage Loan; and GMACM has not advanced funds, or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan;
-9-
(d) There are no delinquent taxes which are due and payable, ground rents,
assessments or other outstanding charges affecting the related Mortgaged
Property;
(e) The Mortgage Note and the Mortgage have not been impaired, waived, altered
or modified in any respect, except by written instruments which have been
recorded to the extent any such recordation is required by applicable law or is
necessary to protect the interests of the Purchaser, and which have been
approved by the title insurer and the primary mortgage insurer, as applicable,
and copies of which written instruments are included in the Mortgage File. No
other instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released by GMACM or, to the best of GMACM's knowledge, by
any other person, in whole or in part, from the terms thereof except in
connection with an assumption agreement, which assumption agreement is part of
the Mortgage File and the terms of which are reflected on the Mortgage Loan
Schedule;
(f) The Mortgage Note and the Mortgage are not subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(g) All buildings upon the Mortgaged Property are insured by a generally
acceptable insurer pursuant to standard hazard policies conforming to the
requirements of Xxxxxx Xxx and Xxxxxxx Mac. All such standard hazard policies
are in effect and on the date of origination contained a standard mortgagee
clause naming GMACM and its successors in interest as loss payee and such clause
is still in effect. If the Mortgaged Property is located in an area identified
by the Federal Emergency Management Agency as having special flood hazards under
the Flood Disaster Protection Act of 1973, as amended, such Mortgaged Property
is covered by flood insurance by a generally acceptable insurer in an amount not
less than the requirements of Xxxxxx Mae and Xxxxxxx Mac. The Mortgage obligates
the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost
and expense, and on the Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from the Mortgagor;
(h) Any and all requirements of any federal, state or local law including,
without limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity or disclosure laws
applicable to the Mortgage Loan have been complied with in all material
respects;
(i) The Mortgage has not been satisfied, canceled or subordinated, in whole or
in part, or rescinded, and the Mortgaged Property has not been released from the
lien of the Mortgage, in whole or in part nor has any instrument been executed
that would effect any such satisfaction, release, cancellation, subordination or
rescission;
(j) The Mortgage Note and the related Mortgage are original and genuine and each
is the legal, valid and binding obligation of the maker thereof, enforceable in
all respects in accordance with its terms subject to bankruptcy, insolvency and
other laws of general application affecting the rights of creditors. All parties
to the Mortgage Note and the Mortgage had the legal capacity to enter into the
-10-
Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage. The
Mortgage Note and the Mortgage have been duly and properly executed by such
parties. The proceeds of the Mortgage Note have been fully disbursed and there
is no requirement for future advances thereunder;
(k) (i) With respect to each Xxxxxx Mortgage Loan, (A) immediately prior to the
transfer and assignment to the Purchaser, the Mortgage Note and the Mortgage
were not subject to an assignment or pledge, except for any assignment or pledge
that had been satisfied and released, (B) immediately prior to the assignment of
such Mortgage Loan to Xxxxxx, GMACM had good and marketable title thereto and
was the sole owner thereof, and (C) GMACM had full right to transfer and sell
the Mortgage Loan pursuant to the Xxxxxx Purchase Agreement free and clear of
any encumbrance, equity, lien, pledge, charge, claim or security interest; and
(ii) with respect to each GMACM Mortgage Loan, (A) immediately prior to the
transfer and assignment to the Purchaser, the Mortgage Note and the Mortgage
were not subject to an assignment or pledge, except for any assignment or pledge
that had been satisfied and released, (B) GMACM had good and marketable title to
and was the sole owner thereof and (C) GMACM had full right to transfer and sell
the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien, pledge, charge, claim or security interest;
(l) The Mortgage Loan is covered by an ALTA lender's title insurance policy or
other generally acceptable form of policy of insurance, with all necessary
endorsements, issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to the
exceptions contained in clause (b) (1), (2) and (3) above) GMACM, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan. Such title insurance policy affirmatively
insures ingress and egress and against encroachments by or upon the Mortgaged
Property or any interest therein. GMACM is the sole insured of such lender's
title insurance policy, such title insurance policy has been duly and validly
endorsed to the Purchaser or the assignment to the Purchaser of GMACM interest
therein does not require the consent of or notification to the insurer and such
lender's title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender's title insurance policy,
and no prior holder of the related Mortgage has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy;
(m) To GMACM's knowledge, there is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
permitting acceleration; and neither GMACM nor any prior mortgagee has waived
any default, breach, violation or event permitting acceleration;
(n) To GMACM's knowledge, there are no mechanics, or similar liens or claims
which have been filed for work, labor or material affecting the related
Mortgaged Property which are or may be liens prior to or equal to the lien of
the related Mortgage;
(o) To GMACM's knowledge, all improvements lie wholly within the boundaries and
building restriction lines of the Mortgaged Property (and wholly with the
project with respect to a condominium unit) and no improvements on adjoining
-11-
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (l) above and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(p) The Mortgage Loan is a "qualified mortgage" under Section 860(G)(a)(3)(A) of
the Code and Treasury
Regulations Section 1.860G-2(a)(1);
(q) The Mortgage Loan was originated by GMACM or by an eligible correspondent of
GMACM. The Mortgage Loan complies in all material respects with all the terms,
conditions and requirements of GMACM's underwriting standards in effect at the
time of origination of such Mortgage Loan. The Mortgage Notes and Mortgages are
on uniform Xxxxxx Xxx/Xxxxxxx Mac instruments or are on forms acceptable to
Xxxxxx Mae or Xxxxxxx Mac;
(r) The Mortgage Loan contains the usual and enforceable provisions of the
originator at the time of origination for the acceleration of the payment of the
unpaid principal amount if the related Mortgaged Property is sold without the
prior consent of the mortgagee thereunder. The Mortgage Loan has an original
term to maturity of not more than 30 years, with interest payable in arrears on
the first day of each month. Except as otherwise set forth on the Mortgage Loan
Schedule, the Mortgage Loan does not contain terms or provisions which would
result in negative amortization nor contain "graduated payment" features or
"buydown" features;
(s) To GMACM's knowledge, the Mortgaged Property at origination of the Mortgage
Loan was and currently is free of damage and waste and at origination of the
Mortgage Loan there was, and there currently is, no proceeding pending for the
total or partial condemnation thereof;
(t) The related Mortgage contains enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (1) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (2) otherwise by judicial foreclosure. To GMACM's knowledge,
there is no homestead or other exemption available to the Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose the Mortgage;
(u) If the Mortgage constitutes a deed of trust, a trustee, duly qualified if
required under applicable law to act as such, has been properly designated and
currently so serves and is named in the Mortgage, and no fees or expenses are or
will become payable by the Purchaser to the trustee under the deed of trust,
except in connection with a trustees sale or attempted sale after default by the
Mortgagor;
(v) If required by the applicable processing style, the Mortgage File contains
an appraisal of the related Mortgaged Property made and signed prior to the
final approval of the mortgage loan application by an appraiser that is
acceptable to Xxxxxx Mae or Xxxxxxx Mac and approved by GMACM. The appraisal, if
applicable, is in a form generally acceptable to Xxxxxx Mae or Xxxxxxx Mac;
(w) To GMACM's knowledge, each of the Mortgaged Properties consists of a single
parcel of real property with a detached single-family residence erected thereon,
-12-
or a two- to four-family dwelling, a townhouse, an individual condominium unit
in a condominium project, an individual unit in a planned unit development or a
proprietary lease on a cooperatively owned apartment and stock in the related
cooperative corporation. Any condominium unit or planned unit development either
conforms with applicable Xxxxxx Mae or Xxxxxxx Mac requirements regarding such
dwellings or is covered by a waiver confirming that such condominium unit or
planned unit development is acceptable to Xxxxxx Mae or Xxxxxxx Mac or is
otherwise "warrantable" with respect thereto. No such residence is a mobile home
or manufactured dwelling;
(x) The ratio of the original outstanding principal amount of the Mortgage Loan
to the lesser of the appraised value (or stated value if an appraisal was not a
requirement of the applicable processing style) of the Mortgaged Property at
origination or the purchase price of the Mortgaged Property securing each
Mortgage Loan (the "Loan-to-Value Ratio") is not in excess of 95.00%. The
original Loan-to-Value Ratio of each Mortgage Loan either was not more than
80.00% or the excess over 80.00% is insured as to payment defaults by a primary
mortgage insurance policy issued by a primary mortgage insurer acceptable to
Xxxxxx Mae and Xxxxxxx Mac;
(y) GMACM is either, and each Mortgage Loan was originated by, a savings and
loan association, savings bank, commercial bank, credit union, insurance company
or similar institution which is supervised and examined by a federal or State
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Section 203 and 211 of the National Housing Act;
(z) The collection and servicing practices with respect to each Mortgage Note
and Mortgage have been in all material respects legal, normal and usual in
GMACM's general mortgage servicing activities. With respect to escrow deposits
and payments that GMACM collects, all such payments are in the possession of, or
under the control of, GMACM, and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or other charges or payments due under the Mortgage
Note have been capitalized under any Mortgage or the related Mortgage Note;
(aa) No fraud or misrepresentation of a material fact with respect to the
origination of a Mortgage Loan has taken place on the part of GMACM; and
(bb) If any of the Mortgage Loans are secured by a leasehold interest, with
respect to each leasehold interest: residential property in such area consisting
of leasehold estates is readily marketable; the lease is recorded and is in full
force and effect and is not subject to any prior lien or encumbrance by which
the leasehold could be terminated or subject to any charge or penalty; and the
remaining term of the lease does not terminate less than ten years after the
maturity date of such Mortgage Loan.
With respect to this Section 7.02(i), representations made by GMACM
with respect to the Xxxxxx Mortgage Loans, made as of the Cut-Off Date or the
Closing Date are made by GMACM in its capacity as Servicer under the Xxxxxx
Purchase Agreement. Representations made by GMACM with respect to the Xxxxxx
Mortgage Loans sold by Xxxxxx and made as of any other date are made by GMACM in
its capacity as seller of Xxxxxx Mortgage Loans to Xxxxxx.
-13-
(ii) Xxxxxx hereby represents and warrants to the Purchaser, as to each Xxxxxx
Mortgage Loan, as of the Closing Date, as follows:
With respect to each Xxxxxx Mortgage Loan, (A) immediately
prior to the transfer and assignment to the Purchaser, the Mortgage Note and the
Mortgage were not subject to an assignment or pledge, except for any assignment
or pledge that had been or is, concurrently with the sale and assignment
hereunder, satisfied and released; (B) immediately prior to assignment of such
Mortgage Loan, Xxxxxx had good title thereto; and (C) immediately prior to such
assignment Xxxxxx had good and marketable title to and was the sole owner
thereof and had full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim
or security interest, except for any encumbrance, equity, lien, pledge, charge,
claim or security interest that had been or is, concurrently with the sale and
assignment hereunder, satisfied and released.
SECTION 7.03 Repurchase. It is understood and agreed that the representations
and warranties set forth in Sections 7.01 and 7.02 shall survive the sale of the
Mortgage Loans to the Purchaser and delivery of the related Mortgage Loan
documents to the Purchaser or its designees and shall inure to the benefit of
the Purchaser, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment or the examination of any Mortgage File. Upon
discovery by Xxxxxx, GMACM or the Purchaser of a breach of the representations
and warranties made by Xxxxxx or GMACM, or upon the occurrence of a Repurchase
Event, in either case which materially and adversely affects interests of the
Purchaser or its assignee in any Mortgage Loan, the party discovering such
breach or occurrence shall give prompt written notice to each of the other
parties. If the substance of any representation or warranty has been breached,
the repurchase obligation set forth in the provisions of this Section 7.03 shall
apply notwithstanding any qualification as to the knowledge of Xxxxxx or GMACM.
Following discovery or receipt of notice of any such breach of a representation
or warranty made by Xxxxxx or GMACM or the occurrence of a Repurchase Event,
GMACM or Xxxxxx, as applicable, shall either (i) cure such breach in all
material respects within 90 days from the date such Person was notified of such
breach or (ii) repurchase such Mortgage Loan at the related Purchase Price
within 90 days from the date such Person was notified of such breach; provided,
however, that GMACM or Xxxxxx, as applicable, shall have the option to
substitute a Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan
if such substitution occurs within two years following the Closing Date; and
provided further that if the breach or occurrence would cause the Mortgage Loan
to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure, repurchase or substitution must occur within 90 days from
the earlier of the date the breach was discovered or receipt of notice of any
such breach. In the event that any such breach shall involve any representation
or warranty set forth in Section 7.01 or those relating to the Mortgage Loans or
a portion thereof in the aggregate, and such breach cannot be cured within
ninety days of the earlier of either discovery by or notice to Xxxxxx or GMACM,
as the case may be, of such breach, all Mortgage Loans affected by the breach
shall, at the option of the Purchaser, be repurchased by Xxxxxx or GMACM, as
applicable, at the Purchase Price or substituted in accordance with this Section
7.03. If GMACM or Xxxxxx elects to substitute a Qualified Substitute Mortgage
Loan or Loans for a Deleted Mortgage Loan pursuant to this Section 7.03, such
Person shall deliver to the Custodian with respect to such Qualified Substitute
Mortgage Loan or Loans, the original Mortgage Note endorsed as required by
Section 6, and Xxxxxx or GMACM, as applicable, shall deliver to the Servicer
-14-
with respect to such Qualified Substitute Mortgage Loan, the Mortgage, an
Assignment of the Mortgage in recordable form if required pursuant to Section 6,
and such other documents and agreements as are required to be held by the
Servicer pursuant to Section 6. No substitution will be made in any calendar
month after the Determination Date for such month. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution
shall not be part of the Trust Fund and will be retained by the Servicer and
remitted by the Servicer to such Seller on the next succeeding Distribution
Date. For the month of substitution, distributions to the Certificateholders
will include the Monthly Payment due on a Deleted Mortgage Loan for such month
and thereafter Xxxxxx or GMACM, as applicable, shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. Upon such
substitution, the Qualified Substitute Mortgage Loan or Loans shall be subject
to the terms of this Agreement in all respects, and Xxxxxx and GMACM, as
applicable, shall be deemed to have made the representations and warranties
contained in this Agreement with respect to the Qualified Substitute Mortgage
Loan or Loans and that such Mortgage Loans so substituted are Qualified
Substitute Mortgage Loans as of the date of substitution. In furtherance of the
foregoing, if GMACM or Xxxxxx repurchases or substitutes a Mortgage Loan and is
no longer a member of MERS and the Mortgage is registered on the MERS(R) System,
the Purchaser, at the expense of GMACM and without any right of reimbursement,
shall cause MERS to execute and deliver an assignment of the Mortgage in
recordable form to transfer the Mortgage from MERS to GMACM or Xxxxxx, as the
case may be, and shall cause such Mortgage to be removed from registration on
the MERS(R) System in accordance with MERS' rules and regulations.
In the event of a repurchase by Xxxxxx or GMACM pursuant to this
Section 7.03, the Purchaser shall (i) forward or cause to be forwarded the
Mortgage File for the related Mortgage Loan to Xxxxxx or GMACM, as the case may
be, which shall include the Mortgage Note endorsed without recourse to such
Seller or its designee, (ii) cause the Servicer to release to Xxxxxx or GMACM,
as the case may be, any remaining documents in the related Mortgage File which
are held by the Servicer, and (iii) forward or cause to be forwarded an
assignment in favor of Xxxxxx or GMACM, as the case may be, or its designee of
the Mortgage in recordable form and acceptable to Xxxxxx or GMACM, as the case
may be, in form and substance and such other documents or instruments of
transfer or assignment as may be necessary to vest in Xxxxxx or GMACM, as the
case may be, or its respective designee title to any such Mortgage Loan (or with
respect to any Mortgage registered on the MERS(R) System, if Xxxxxx or GMACM, as
the case may be, is still a member of MERS, the Purchaser shall cause MERS to
show Xxxxxx or GMACM, as the case may be, as the owner of record). The Purchaser
shall cause the related Mortgage File to be forwarded to Xxxxxx or GMACM, as the
case may be, immediately after receipt of the related Purchase Price by wire
transfer of immediately available funds to an account specified by the
Purchaser.
It is understood and agreed that the obligation of Xxxxxx or GMACM, as
the case may be, to cure such breach or purchase (or to substitute for) such
Mortgage Loan as to which such a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the Purchaser or
the Trustee on behalf of the Certificateholders.
SECTION 8. Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given when deposited, postage
prepaid, in the United States mail, if mailed by registered or certified mail,
-15-
return receipt requested, or when received, if delivered by private courier to
another party, at the related address shown on the first page hereof, or such
other address as may hereafter be furnished to the parties by like notice.
SECTION 9. Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 10. Counterparts; Entire Agreement. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original, and all such counterparts shall constitute one and the same
instrument. This Agreement is the entire agreement between the parties relating
to the subject matter hereof and supersedes any prior agreement or
communications between the parties.
SECTION 11. Place of Delivery and Governing Law. This Agreement shall be deemed
in effect when counterparts hereof have been executed by each of the parties
hereto. This Agreement shall be deemed to have been made in the State of New
York. This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws of the State of New York,
without giving effect to its conflict of law rules.
SECTION 12. Successors and Assigns; Assignment of Agreement. This Agreement
shall bind and inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns; provided that this Agreement may
not be assigned, pledged or hypothecated by each Seller to a third party without
the prior written consent of the Purchaser.
SECTION 13. Waivers; Other Agreements. No term or provision of this Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
SECTION 14. Survival. The provisions of this Agreement shall survive the Closing
Date and the delivery of the Mortgage Loans, and for so long thereafter as is
necessary (including, subsequent to the assignment of the Mortgage Loans) to
permit the parties to exercise their respective rights or perform their
respective obligations hereunder.
-16-
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
GMAC MORTGAGE CORPORATION, as Seller
By:_______________________________
Name:
Title:
XXXXXX FUNDING LLC, as Seller
By: GMAC Mortgage Corporation, as Administrator
By:_______________________________
Name:
Title:
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as
Purchaser
By:_______________________________
Name:
Title:
-17-
SCHEDULE I-A
GMACM MORTGAGE LOAN SCHEDULE
(Attached Hereto)
SCHEDULE X-X
XXXXXX MORTGAGE LOAN SCHEDULE
(Attached Hereto)
